Jackson v. Maryland Cas. Co.
| Decision Date | 24 November 1937 |
| Docket Number | 529. |
| Parties | JACKSON v. MARYLAND CASUALTY CO. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Mecklenburg County; Frank S. Hill Judge.
Action by John Ben Jackson, by his next friend, Goebel Porter against Maryland Casualty Company. From a judgment for defendant, plaintiff appeals.
Affirmed.
A verdict for plaintiff would be interpreted in light of allegations of complaint and testimony at trial.
This was an action upon a liability insurance policy issued by the defendant to Geo. F. Scheiber on his automobile. The plaintiff alleged that defendant's insurance contract covered the liability of one Robert Pearson who was driving the Scheiber automobile at the time plaintiff was injured by it, and that plaintiff's recovery of damages against Pearson and the return of execution unsatisfied rendered defendant liable to him for the amount of his judgment against Pearson.
The defendant denied liability to the plaintiff and alleged that the injuries for which plaintiff recovered damages were intentionally inflicted by Pearson; that the policy of insurance did not cover liability for injury intentionally inflicted by the insured; and defendant set up the judgment in Jackson v. Scheiber, 209 N.C. 441, 184 S.E. 17 wherein plaintiff's suit against Scheiber for the same injury was dismissed on the ground that plaintiff's own evidence showed an intentional injury, and defendant alleged that, it having been judicially determined that plaintiff was not entitled to recover of the owner of the automobile, the named insured, because the injury was due to the willful and intentional act of Pearson, the driver, plaintiff was estopped to maintain this action.
The policy of insurance offered in evidence stated the insuring agreement to be "Against loss from liability imposed by law upon the assured for damages on account of bodily injuries accidentally suffered by any person, caused by the ownership or operation of the automobile described," and the policy contained the following provision: "The insurance provided by this policy is hereby made available * * * to any person operating * * * any of the automobiles described, * * * provided the use and operation thereof are with the permission of the named assured; * * * provided further insurance payable under this policy shall be applied by the Company first to the protection of the named assured, and the remainder, if any, to the protection of others entitled to insurance under the provisions and conditions of the insuring agreement as the named assured shall in writing direct."
Plaintiff's complaint in his former action against Scheiber and Pearson contained the following allegations: "That, as the plaintiff is informed and believes, the acts of the defendant in driving the said Chrysler automobile into the plaintiff and in thereafter carrying him in a helpless and unconscious condition for a distance equal to the length of a city block as aforesaid were willful, wanton, and reckless and in conscious and criminal disregard of and indifference to the personal and property rights of others, and particularly of the plaintiff."
Plaintiff offered the judgment rendered in his favor and against Robert Pearson, and the verdict of the jury that he was injured by the negligence of Pearson and damaged in the...
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